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In the context of the proposed EU accession to the ECHR, the Commission proposes to introduce a new procedure that would allow it to seize the EU Court of Justice (ECJ) where a complaint against EU law is filed with the European Court on Human Rights. Some comments concerning the proposal:

Although promising, the proposed procedure of preliminary examination of the validity of Union acts appears to be insufficient in several respects:

1) Lack of complainant right to seize ECJ

Not only the Commission and the respondent Member State should be entitled to make a request for having a Union act reviewed by the ECJ, but also the person bringing the complaint. It seems appropriate for the sake of equality of arms to give the applicant before the ECtHR the same right. The ECJ has asked the Union to ensure „prior internal control“. This can only be ensured by giving the complainant the right to seize the ECJ where the Commission and the respondent Member State choose not to.

2) Insufficient scope of review

The Commission suggests the scope of the assessment to be carried out by the Court of Justice should not encompass all aspects of the validity of that Union act (e.g. compatibility with other fundamental rights, competence, choice of the legal basis, respect of essential procedural
requirements), in order to „streamline“ the procedure and thereby reduce its length.

This proposal is counter-productive. In fact matters such as the choice of the legal basis or respect of essential procedural
requirements are typically much easier and quicker to assess than the difficult matter of compatibility with human rights. Quite often, formal deficiencies of Union acts can result in a much quicker annulment than substantitive considerations.

For example, in the context of its PNR complaint, the European Parliament raised both issues of legal basis and difficult issues of proportionality and human rights. The procedure was very much shortened by the fact that the PNR acts lacked a legal basis so that the ECJ did not need to take the time to examine the difficult questions relating to proportionality and human rights.

Apart from the fact that limiting the scope of review is counter-productive, it is also unacceptable to citizens that an interference with their fundamental rights, although lacking a legal basis or disregarding essential procedural requirements, will still be upheld by the ECJ for lack of jurisdiction. Such limited review will in fact lead to subsequent court actions aiming at achieving a full review by means of a preliminary ruling, thus creating more legal proceedings, taking more time and leaving citizens with illegal Union acts for longer periods of time.

For example, the ECJ has so far twice avoided assessing the proportionality of directive 2006/24/EC (C-301/06 and C-92/09). This has resulted in disparate national Constitutional Court decisions and in ever more actions being initiated in various Member States. Had the directive been assessed comprehensively by the ECJ in the first place, justice would have been administered much quicker and more effectively.

3) Intervention in preliminary ruling proceedings

Preliminary ruling proceedings before the ECJ regarding an alleged violation of fundamental rights should allow for participation of interested third parties („intervention“). For example the data protection supervisor, a human rights organization or an interested citizen could intervene. After all if a human right is alleged to be violated by EU law, this violation would affect numerous citizens who must all be given a right to intervene and let their voices be heard (see also Article 13 ECHR).

Rule 44 of the European Court of Human Rights reads: „the President of the Chamber may, in the interests of the proper administration of justice, as provided in Article 36 § 2 of the Convention, invite, or grant leave to, any Contracting Party which is not a party to the proceedings, or any person concerned who is not the applicant, to submit written comments“.

A similar rule should be introduced in the Rules of Procedure of the ECJ. For it would not make sense for a third party to submit important or even decisive comments only to the ECtHR without the ECJ having the opportunity to also consider and accept such comments in its review procedure.

Article 40 of the ECJ statute is not sufficient in this respect as it limits applications to intervene „to supporting the form of order sought by one of the parties“. The ECJ has therefore held applications for leave to intervene in preliminary ruling proceedings to be inadmissible, arguing that Article 40 of the statute was limited to contentious proceedings rather than preliminary ruling proceedings (Order of 26 Feb 1996, C-181/95; Order of 25 May 2004, C-458/03; Order of 12 Sep 2007, C-73/07; Order of 13 Jan 2010, C‑92/09).

If Article 40 is not extended to preliminary ruling proceedings (including the prior review proceeding that is to be created upon accession to the ECHR), there is a danger that a citizen will challenge EU law for violating the ECHR, the National Court will refer the matter to the ECJ for a preliminary ruling, the ECJ may not find a violation but the ECtHR, after hearing the submissions of third parties who could not intervene before the ECJ, may come to a different conclusion. The ECJ should therefore be given the opportunity to consider and accept third party comments in preliminary ruling proceedings, including the prior review procedure that is to be created upon accession to the ECHR.

4) Direct complaints procedure

In the context of creating a prior review procedure, the Union should also give its citizens the right to file direct fundamental rights compaints with the ECJ where it is alleged that EU law violates their fundamental rights. In such cases it does not make sense to require citizens to seize their National Courts first as National Courts cannot annul EU law. It is not reasonable to require citizens to invest large sums of money and wait long periods of time before a referral is made (or not) to the only Court that can decide on the validity of EU law. A right to file direct constitutional complaints has proven very successful in various Member States and should be introduced at EU level, too.

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